FEDERAL EMPLOYEES – FILING A DISCRIMINATION CLAIM / UNDERSTANDING THE FEDERAL SECTOR EEO PROCESS
When a federal employee believes s/he has been the subject of discrimination or retaliation, s/he must go through an administrative process in an attempt to resolve the situation. To start the EEO complaint process the employee must contact the Agency’s EEO counselor within 45 days of the last discriminatory or retaliatory incident.
An employee who misses the 45 day deadline can attempt to have the time limit extended by showing that 1) s/he was not notified of the time limits and were not aware of them, 2) s/he did not and reasonably should not have known that the discriminatory matter occurred; or 3) despite due diligence, s/he was prevented by circumstances beyond his or her control from contacting the EEO counselor within the 45 day time limit (for example, because of being hospitalized). Be advised, it is extremely difficult to prove that a person who misses any deadline should be granted an extension. Keep in mind, the EEO counselor works for the Agency against whom the complaint is being filed.
If you are a federal employee and you file an EEO Complaint, you are referred to as the Complainant. After you make contact with the EEO Couselor, within a few days the counselor is supposed to meet with you to discuss your claims. The counselor may have you fill out what is called pre-complaint paperwork. Keep in mind that everything you write down can be used against you, so before you start filling out paperwork it might be in your best legal interest to consult with a qualifed lawyer. The counselor is supposed to advise you about the EEO process, but is not supposed to give legal advice. After learning about your complaint, the counselor is supposed to speak to management about your concerns and attempt to resolve the complaint. Only rarely are complaints resolved in the counseling stage, but it does happen. EEO counseling is supposed to last 30 days, but it often takes longer. Sometimes the Agency will ask that you extend the counseling period.
ADR stands for alternative dispute resolution, which involves mediation. It may be to your benefit to resolve a complaint before the working relationship becomes strained over the litigation, since an early resolution will typically allow both parties to move on and save face. However, mediation will only work both parties commit to getting the complaint resolved, which means that both parties need to make reasonable demands.
After the counseling period, the counselor issues the employee a Notice of Right to File a Formal Complaint, along with a complaint form. The employee has 15 days from receipt of the Notice to file a formal complaint. The complaint needs to contain enough information so that the facts alleged support what is called a prima facie case of discrimination. If you do not include enough material allegations, your complaint could be dismissed. Besides setting forth sufficient facts to support a claim, you need to indicate the bases of discrimination (for example, sex (female), disability (asthma), and retaliation (prior EEO activity)). The complaint should describe discriminatory incidents, including retaliation. Your description should include dates and identify key persons who may have observed the discriminatory conduct. The complaint should name the individuals alleged to be responsible for the discrimination or retaliation, also called the Responsible Management Officials (RMOs). The complaint should state the remedy requested. It is sufficient to state: “I’m requesting all relief to which I am entitled to under law, including compensatory damages, attorney’s fees and costs.”
After filing the formal complaint, the Agency may issue an acceptance letter, an acceptance and partial dismissal letter, or a dismissal letter, accepting or denying the claims in the formal complaint. It is important that you, as the Complainant, review this letter carefully and assure that it covers all the bases and issues you desire. If it does not, you should write a letter within the time period allotted, often 5 or 7 days, to the Agency explaining why the Agency incorrectly determined the bases and/or issues. The Agency very often will not adjust the bases or issues accordingly, but the issue will be preserved for appeal or trial. The issue can be raised again before an EEOC Administrative Judge, in the case of a partial acceptance dismissal, or the EEOC Office of Federal Operations, in the case of a complete dismissal.
If the Agency accepts the complaint, it assigns an EEO investigator, who either works directly for the Agency or works for the Agency on a contract basis. The investigator is supposed to impartially gather relevant facts concerning the allegations raised in the complaint. The investigator may conduct the investigation through in-person interviews, telephonic interviews, or through written affidavits. The investigator usually starts the investigation by interviewing the Complainant. It is very important that you give a full and complete version of the facts during the investigation. Be sure to describe how you were treated differently or harassed, including comparing yourself to others outside your protected class. You need to show how others outside your protected class were treated more favorably, how, by whom, and when. You are better off being concise in all your statements, since the more you say, the more you have to defend. You must also provide the investigator with any relevant documents that support your case, even if the investigator does not request it. Notify the investigator in writing of any supportive witnesses, summarizing for the investigator the anticipated testimony of each witness. Notify the investigator in writing of any supportive documents that you know about but are not in your possession.
Typically, after obtaining information from the Complainant, the investigator then questions the management witnesses and the discriminating official. After the investigator gathers information from management witnesses, the investigator often gives the Complainant a chance to rebut management’s allegations. If given the opportunity, you should rebut as many relevant allegations you can, point-by-point. At the end of the investigation the EEO Investigator generates an “Investigative File” (IF) or “Report of Investigation” (ROI), which contains the documents generated during the investigation. Usually, the ROI is the only information the Administrative Judge (AJ) will have regarding your case until hearing, assuming you get to a hearing. That is why it is so critical that the Complainant ensures that the EEO Investigator is provided complete and quality information about the case. On rare occasion the EEO Investigator will produce a quality ROI, but be forewarned, usually the investigation is bare bones and favors the Agency.
The ROI should be issued within 180 days of when you filed the complaint. Within 30 days of when you receive the receipt or after 180 days from filing has passed, you may request a hearing with an EEOC Administrative Judge (AJ). An AJ will then be assigned to the matter and will issue an order to the parties, setting forth many important deadlines, with which the parties must comply or risk prejudicing their case. The order specifies the deadlines for discovery. Discovery includes interrogatories, requests for production, requests for admissions, and depositions. Depositions usually take place at counsel’s office in the presence of a court reporter. Depositions consist of the lawyers for each side asking the deponent about the case. Transcripts from depositions can be used at hearing.
It is the Complainant’s burden to prove his or her case. The evidence must convince the AJ that a motivating factor of the decision maker was based on an illegal reason; e.g., the Complainant’s gender. Generally speaking, the Judge will follow the McDonnell-Douglas framework in determining whether or not the Complainant has met his or her burden of proof. McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). The three part McDonnell-Douglas test is:
1. The complainant bears the burden of production to show a ‘prima facie’ case of discrimination;
2. If the complainant shows a ‘prima facie’ case, the burden of production shifts to the Agency to show that they had a legitimate non-discriminatory reason for the action complained of;
3. If the Agency shows a legitimate non-discriminatory reason for its action, the burden of production shifts back to the complainant to show what is called ‘pretext’.
It is important to note, however, that in the law there is a large difference between a “burden of production” and a “burden of persuasion”. The burden of production means only that the party must put forth evidence of the particular element. If the Complainant produces circumstantial evidence that discrimination occurred, then the Agency responds by offering evidence that no discriminatory act occurred, which is called a legitimate non-discriminatory reason.
In an EEO case, the Complainant has the burden of persuasion on each claim made asserted by the Complainant. The Agency only has the burden of persuasion if it asserts an affirmative defense. The burden of persuasion, on the other hand, means that the Complainant must persuade the finder-of-fact (in Federal Employee EEO cases, this is the EEOC AJ) that his or her evidence is superior to the Agency’s and is sufficient to prevail on each element of every claim. In other words, when there is conflicting evidence on an issue, the AJ decides who to believe. There are many human factors that go into making credibility determinations that will dictate the outcome of the case.
You can file a federal court lawsuit if one of the following conditions are present:
1) 180 days have passed since you filed your formal EEO complaint and the EEO investigation has not been completed.
2) You receive a Report of Investigation on your EEO complaint and you choose to file a lawsuit rather than request a final agency decision or request a hearing with an EEOC Administrative Judge.
3) You requested an EEOC Administrative Judge hearing and the AJ issued a decision against you or the AJ issued a decision in your favor, but it was rejected by the Agency.
You have 90 days from the date of the final agency decision based on the EEOC AJ’s decision to file a lawsuit in federal court.
If you file an appeal of the final agency decision or the EEOC AJ’s decision to the Office of Federal Operations of the EEOC, and the OFO/EEC finds against you, you will have 90 days from the date of the OFO/EECO decision to file a federal court lawsuit.
Finally, if you win your case before the EEOC AJ or in federal court, your attorney’s fees will be paid by the agency. In most settlements, your fees are also paid by the agency. Many attorneys will represent federal employees on a contingent fee basis if there are sufficient facts to support your EEO claims.
The information on this blog or website is not legal advice. For more information about the federal sector EEO process go to the EEOC’s web site at: http://www.eeoc.gov/facts/fs-fed.html
Contact Denver EEO Attorney Gregory A. Hall to set up an appointment for a legal consultation: WWW.DENVEREEOLAWYER.COM
Gregory A. Hall
A Colorado Civil Rights Attorney
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Phone: 303-320-0584
Email: gregory@federallaw.com